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Rollins v. United States

United States District Court, E.D. Tennessee, Chattanooga

June 12, 2017

EDDIE ROLLINS, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          MEMORANDUM OPINION

          TRAVIS R. MCDONOUGH UNITED STATES DISTRICT JUDGE.

         Before the Court is Petitioner's supplemented motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 [Docs. 1560, 1597, 1651].[1] The United States responded in opposition on May 4, 2016 [Doc. 1641]; Petitioner replied on May 31, 2016 [Doc. 1655]. This Court is also in possession of Petitioner's pro se requests to withdraw one of his claims [Doc. 1703] and for the appointment of counsel [Doc. 1525]. For the reasons discussed below, Petitioner's pro se request to withdraw one of his claims [Doc. 1703] will be GRANTED, motion for the appointment of counsel [Doc. 1525] will be DENIED, and his supplemented § 2255 motion [Docs. 1560, 1597, 1651] will be DENIED and DISMISSED WITH PREJUDICE.

         I. BACKGROUND

         At the close of a fourteen-day trial in 2011, Petitioner and three co-defendants-Harry Allen Pritchett, Michael Coffelt, and Jessie H. Johnson-were convicted of various drug and firearms offenses arising from their involvement in a methamphetamine conspiracy in Marion County, Tennessee. United States v. Pritchett, 749 F.3d 417 (6th Cir. 2014). The evidence against Petitioner included evidence of methamphetamine manufacturing found in his vehicle following traffic stops in September of 2008 and June of 2009, respectively; pharmacy records showing that he purchased nearly 60 grams of pseudoephedrine in a series of 27 transactions between August of 2008 and September of 2009; testimony from co-defendants who accompanied Petitioner to buy pseudoephedrine or iodine, manufactured methamphetamine with Petitioner, or otherwise observed him “cooking” methamphetamine; Petitioner's own statements to law enforcement agents; and expert testimony about methamphetamine manufacturing generally. Faced with the foregoing, a jury convicted Petitioner of conspiring to distribute and manufacture at least five grams of methamphetamine or fifty grams of a mixture containing methamphetamine, in violation of 21 U.S.C. §§ 846 and 841(a)(1), (b)(1)(B); conspiring to possess or distribute pseudoephedrine or iodine for the use of methamphetamine manufacturing, in violation of 21 U.S.C. §§ 846 and 841(c)(2); manufacturing methamphetamine, in violation of 21 U.S.C. § 841(a)(1), (b)(1)(C); and possessing chemicals, products, material or equipment that may be used to manufacture methamphetamine, in violation of 21 U.S.C. § 843(b)(6) [Doc. 1244].

         Based on two prior convictions-a federal drug conviction and a Georgia conviction for the destruction of property by fire or explosive-the United States Probation Office deemed Petitioner to be a career-offender under Section 4B1.1 of the United States Sentencing Guidelines [Presentence Investigation Report (PSR) ¶¶ 38, 48, 50]. In accordance with that designation, this Court sentenced Petitioner to 360 months' imprisonment, a term at the bottom of his advisory Guidelines range [Doc. 1336]. Petitioner appealed, but the Sixth Court of Appeals affirmed his judgment and conviction. See Pritchett, 749 F.3d at 437.

         On February 9, 2015, Petitioner field an unsigned motion to vacate, set aside, or correct his sentence pursuant to § 2255 [Doc. 1547]. In compliance with an Order of this Court, Petitioner signed and resubmitted the petition on March 6, 2015 [Doc. 1560]. Six months later- on September 21, 2015-Petitioner requested leave to supplement his petition with a challenge to his career-offender enhancement based on Johnson v. United States, 135 S.Ct. 2551 (2015), which held that the residual provision of the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e), was unconstitutionally vague [Doc. 1597 (requesting leave to file claim)]. This Court received the proposed supplement on May 30, 2016 [Doc. 1651]. In that supplement, Petitioner argues that Johnson invalidated the identically worded residual clause in Section 4B1.2, his prior Georgia conviction for “Criminal Damage to Property, 2nd Degree, ” in violation of Georgia Code Annotated § 16-7-23(a)(2), only qualified as a crime of violence under that provision, and, as a result, he now lacks sufficient predicates for enhancement [Id.].

         On March 6, 2017, the Supreme Court held that the United States Sentencing Guidelines are “not amenable to vagueness challenges.” Beckles v. United States, 137 S.Ct. 886, 894 (2017). Less than one month later-on April 3, 2017, Petitioner filed a motion acknowledging that Beckles foreclosed his request for relief based on Johnson, asking to withdraw that claim, and requesting that this Court appoint counsel to assist with his other grounds for collateral relief [Doc. 1703]. Recently, the United States responded in opposition to the motion to withdraw, requesting instead that this Court deny the entirety of Petitioner's § 2255 petition with prejudice [Doc. 1708].

         II. REQUEST FOR THE APPOINTMENT OF COUNSEL

         Several months before Petitioner filed the original § 2255 motion, he submitted a pro se request that this Court either “appoint new counsel for the defense” or “send him a copy of a 28 U.S.C. § 2255 [form] so that he may proceed pro se in a habeas corpus claim of ineffective assistance of counsel” [Doc. 1525]. As justification, Petitioner explained that appellate counsel had refused to request certiorari because-in his opinion-there were “no meritorious grounds for appeal” [Id.]. Because Petitioner has already submitted the instant collateral challenge, his request for counsel or, in alternative, the forms required for submission of the same is moot. To the extent that Petitioner seeks the appointment of counsel to assist in the litigation of his existing post-conviction challenge [Doc. 1703 (asking that this Court “allow [FDSET] attorney Erin Rust to assist [Petitioner] in [his] original arguments [for collateral relief]”)], that request will be denied because Petitioner has not established that counsel is necessary to ensure that his theories for collateral relief 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).

         III. REQUEST FOR LEAVE TO “WITHDRAW” CLAIM BASED ON JOHNSON

         In addition to the supplemented petition and requests for counsel, this Court is in possession of Petitioner's pro se request for leave to “withdraw” one of his four grounds for collateral relief-the challenge to his career-offender enhancement based on Johnson [Doc. 1703]. The United States responded in opposition, suggesting that this Court should instead deny all four of Petitioner's grounds for relief on the merits and dismiss his petition with prejudice [Doc. 1708].

         Federal Rule of Civil Procedure 41(a)(1)(A)(i) provides that a movant may voluntarily dismiss an action without a court order by filing “a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment[.]” By contrast, Federal Rule of Civil Procedure 41(a)(2) provides that “[e]xcept as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.” Because the United States responded in in opposition to the § 2255 motion and because that response addressed the merits of the claim that Petitioner seeks leave to withdraw, resolution of Petitioner's motion depends on Rule 41(a)(2).

         Whether to grant voluntary dismissal under Rule 41(a)(2) is within the sound discretion of the district court. Grover by Grover v. Eli Lilly and Co., 33 F.3d 716, 718 (6th Cir. 1994). An abuse of discretion exists “only where the [non-movant] would suffer ‘plain legal prejudice' as a result of a dismissal without prejudice, as opposed to facing the mere prospect of a second lawsuit.” Id. (quoting Cone v. West Virginia Pulp & Paper Co., 330 U.S. 212, 217 (1947)). Here, allowing Petitioner to drop one but proceed on the three remaining grounds would not prejudice the United States. As such, this Court will ...


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