United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING MOTION TO AMEND § 2255 MOTION,
DENYING MOTION FOR COUNSEL, AND DIRECTING RESPONDENT TO
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
August 25, 2014, Petitioner, Bob Spivey filed a pro
se 28 U.S.C. § 2255 motion to vacate, set aside, or
correct his sentence (“petition”). (Pet., ECF No.
1.) Before the Court is Spivey's motion to amend the
petition to add a claim for relief under Johnson v.
United States, 135 S.Ct. 2551 (2015), and motion for
appointment of counsel. (Mo. Amend., ECF No. 13; Mo. Counsel,
ECF No. 16.) For the reasons set forth below, the motions are
DENIED. Respondent, United States of America, is ORDERED to
respond to the petition pursuant to the timeframe set forth
August 15, 2011, a federal grand jury, in Case No.
1:11-cr-10064-JDB-1, returned a one-count indictment against
Petitioner, charging him with being a felon in possession of
a firearm in violation of 18 U.S.C. § 922(g). Assistant
Federal Defender Diane Smothers was appointed to represent
him. (Order, Criminal Case (“Cr. Case”), ECF No.
7; Min. Entry, Cr. Case, ECF No. 9.)
pleaded guilty on December 1, 2011. (Change of Plea Min.
Entry, Cr. Case, ECF No. 32.) At sentencing, he was
determined to be an armed career criminal subject to a
mandatory minimum sentence of 15 years' incarceration
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. §§ 924(e)(1), (e)(2)(A). (Presentence Report
(“PSR”) at 11, 13.) His ACCA status was based on
three prior convictions for “serious drug offense[s],
” namely: possession of cocaine with intent to deliver
.5 grams or more; possession of cocaine/cocaine base with
intent to deliver .5 grams or more, and facilitation of
delivery of schedule II over .5 grams. (Id.) The
government moved, pursuant to 18 U.S.C. § 3553, for a
departure below the statutory mandatory minimum and the Court
imposed a sentence of 120 months' incarceration. (Min.
Entry, Cr. Case, ECF No. 44.)
PETITION AND REQUEST FOR JOHNSON REVIEW
defendant filed his habeas petition in August of 2014,
raising the sole claim that his attorney rendered ineffective
assistance. (Pet. ECF No. 1 at 4.) He asserts that Attorney
Smothers should have objected at sentencing and on appeal to
the use of his facilitation conviction to enhance his
sentence, since “facilitation of sale of cocaine [is]
not a controlled substance offense” for purposes of the
ACCA. (Pet., ECF No. 1 at 4) (citing United States v.
Woodruff, 735 F.3d 445 (6th Cir. 2013)).
27, 2016, Petitioner filed a motion for leave to amend his
petition to add the additional claim that enhancement of his
sentence under the ACCA was unconstitutional in light of
Johnson, 135 S.Ct. 2551. (Mo. Am., ECF No. 13 at 4.)
The Court appointed counsel to assist the inmate with his
Johnson claim, (Order, Cr. Case, ECF No. 55), and
counsel subsequently filed a notice that he had completed his
review. (6/24/16 Notice, Cr. Case.)
8, 2017, Petitioner moved for the appointment of counsel,
presumably to aid him in litigating his
ineffective-assistance claim. (Mo. Counsel, ECF No. 16.)
Court determines that Spivey is not entitled to relief under
the Supreme Court's decision in Johnson and that
the appointment of counsel to assist him in litigating his
sole habeas claim is not warranted.
prisoner seeking to vacate his sentence under § 2255
“must allege either (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) (internal quotation marks omitted).
Petitioner, here, contends that the Supreme Court's
ruling in Johnso ...