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Peterson v. United States

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

January 22, 2018

SHEROD PETERSON, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

          ORDER DENYING § 2255 MOTION, DENYING CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN FORMA PAUPERIS

          J. DANIEL BREEN, UNITED STATES DISTRICT JUDGE.

         On July 8, 2014, Petitioner, Sherod Peterson, a federal prisoner, filed a motion to vacate, set aside, or correct his sentence pursuant to 28 U.S.C. § 2255 (the “Petition”). (No. 1:14-cv-01160-JDB-egb, Docket Entry (“D.E.”) 1.)[1] For the reasons that follow, the Petition is

         DENIED.[2]

         BACKGROUND

         A federal grand jury returned a multiple count indictment against Peterson on April 15, 2013. (No. 1:13-cr-10035-JDB-1, D.E. 1.) Assistant Federal Defender Dianne Smothers was appointed to represent him. (Id., D.E. 7, 9.) Pursuant to an agreement with the Government, Peterson pleaded guilty on July 12, 2013, to Counts 1 through 3 of the indictment, which charged the defendant with being a felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1), and to Count 5, which charged possession with intent to distribute less than 500 grams of cocaine in violation of 21 U.S.C. § 841(a)(1). (Id. at D.E. 17-18.)

         In September 2013, the United States Probation Office prepared a presentence report (“PSR”) to aid in the calculation of Petitioner's advisory sentencing range under the United States Sentencing Commission Guidelines Manual (eff. Nov. 1, 2012) (“Guidelines” or “U.S.S.G.”). Due to the defendant's 2002 conviction for possession of marijuana with intent to sell, the PSR applied U.S.S.G. § 2K2.1(a)(4)(A) to arrive at a base offense level of twenty.[3] (PSR at 5, 12.) Under that section, a defendant convicted of being a felon in possession of a firearm who previously “sustain[ed] one felony conviction of either a crime of violence or a controlled substance offense” is subject to a base offense level of twenty. U.S.S.G. § 2K2.1(a)(4)(A). The PSR also identified three specific offense characteristics, which raised the offense level by eight. (PSR at 5.) The offense level was reduced by three for the defendant's acceptance of responsibility. (Id. at 6.) Based on a total offense level of twenty-five and a criminal history category of IV, the defendant's advisory Guidelines imprisonment range was eighty-four to 105 months. (Id. at 22.)

         Defense counsel subsequently filed a sentencing position statement requesting that the defendant be sentenced below the advisory Guidelines range. (No. 1:13-cr-10035-JDB-1, D.E. 23 at PageID 36.) With regard to the “[o]ffense [l]evel [c]omputations, ” the statement reported that “Defendant has no objections to the calculations set out in these paragraphs.” (Id. at PageID 35.)

         At a hearing on October 31, 2013, the defendant was sentenced at the bottom of the Guideline range to eighty-four months of incarceration on each count, to run concurrently, followed by a three-year period of supervised release. (Id., D.E. 24-25.) He did not take a direct appeal.

         In 2014, Peterson filed the Petition (D.E. 1), together with a memorandum (D.E. 1-1).

         The Court construes these documents together as presenting the following claims:

Claim 1: The Court erred at sentencing in adopting the PSR's calculation of a base offense level of twenty under the Guidelines. (D.E. 1 at PageID 4.)
Claim 1A: “[T]he petitioner was enhanced or received a[n] upward of six level[s] without a jury resol[ution] or a hearing to resolve any question of fact that trigger[s] an increase [in] the mandatory minimum sentence in light of Alleyne [v. United States, 570 U.S. 99 (2013)].” (Id.; see also D.E. 1-1 at PageID 12-15.)
Claim 1B: The sentencing judge "failed to adequately explain his reason for the upward variance, ” as required by Peugh v. United States, 569 U.S. 530 (2013), and did not give Petitioner “an opportunity to refute th[e] allegations . . . use[d] for the upward variance.” (D.E. 1-1 at PageID 14; see also D.E. 1 at PageID 4.)
Claim 2: Trial counsel was ineffective by failing to “investigate” and “challenge” the “enhanced” offense level. (See D.E. 1 at PageID 5; D.E. 1-1 at PageID 13, 15.)
Claim 3: Trial counsel rendered ineffective assistance. (D.E. 1 at PageID 6.)

         On November 9, 2017, the Government filed its response to the Petition. (D.E. 12.)

         Peterson submitted a reply on December 13, 2017. (D.E. 13.)

         DISCUSSION

         Respondent argues that Claim 1 is not cognizable in this federal habeas proceeding, Claim 2 is without merit, and Claim 3 is insufficiently pleaded. (D.E. 12 at PageID 38-40.) In support of Claim 2, the Government submits the affidavit of attorney Smothers. (D.E. 12-1.) In his reply, Petitioner does not address Respondent's arguments, but instead asserts for the first time “that he asked his counsel to file a direct appeal . . . [to] challenge . . . the calculation of his guideline range, ” but she did not do so. (D.E. 13 at PageID 46.)

         As an initial matter, the Court will disregard the newly asserted claim. At this late stage, additional claims must be made through a motion for leave to amend the Petition, see Fed. R. Civ. P. 15(a)(2), which Petitioner did not file. Even if filed, such a motion would be denied because the amendment would be futile; the claim was first asserted in the ...


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