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Spivey v. United States

United States District Court, W.D. Tennessee, Eastern Division

July 13, 2017

BOB SPIVEY, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING MOTION TO AMEND § 2255 MOTION, DENYING MOTION FOR COUNSEL, AND DIRECTING RESPONDENT TO RESPOND.

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         INTRODUCTION

         On 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 below.

         RELEVANT BACKGROUND

         On 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.)

         Spivey 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.)

         THE PETITION AND REQUEST FOR JOHNSON REVIEW

         The 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)).

         On June 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.)

         On May 8, 2017, Petitioner moved for the appointment of counsel, presumably to aid him in litigating his ineffective-assistance claim. (Mo. Counsel, ECF No. 16.)

         DISCUSSION

         The 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.

         1. Johnson Claim

         A 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 ...


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