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Evans v. United States

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

May 4, 2018

KODY EVANS, Petitioner,
v.
THE UNITED STATES, Respondent.

          OPINION AND ORDER DENYING DEDENDANT'S MOTION FOR RECONSIDERATION AND DECLINING TO ISSUE A CERTIFICATE OF APPEALABILITY

          ROBERT H. CLELAND UNITED STATES DISTRICT JUDGE

         On May 15, 2012, Petitioner Kody Evans pleaded guilty to six counts of robbery affecting interstate commerce in violation of 18 U.S.C. § 1951 and, on the basis of aiding and abetting, one count of using a firearm during the robberies in violation of 18 U.S.C. § 924(c). Petitioner received a sentence of 204 months imprisonment. He filed a petition pursuant to 28 U.S.C. § 2255 seeking to modify his sentence based on claims of actual innocence of his § 924(c) conviction, ineffective assistance of counsel, and various other constitutional violations. (Dkt. # 1, 4.) The court concluded the claims lacked merit and denied the petition. (Dkt. # 9.) Thereafter, Petitioner filed a Motion for Reconsideration or in the alternative for a Certificate of Appealability. (Dkt. # 11.) The court has considered the motion and for the reasons discussed herein will deny it.

         I. STANDARD

         A. Motion for Reconsideration

         Subject to the court's discretion, a motion for reconsideration shall be granted only if the movant “demonstrate[s] a palpable defect by which the court and the parties . . . have been misled” and “show[s] that correcting the defect will result in a different disposition of the case.” E.D. Mich. L.R. 7.1(h)(3) “A ‘palpable defect' is ‘a defect that is obvious, clear, unmistakable, manifest or plain.'” Buchanan v. Metz, 6 F.Supp.3d 730, 752 (E.D. Mich. 2014) (quoting United States v. Lockett, 328 F.Supp.2d 682, 684 (E.D. Mich. 2004)). The court “will not grant motions for . . . reconsideration that merely present the same issues ruled upon by the court.” E.D. Mich. L.R. 7.1(h)(3).

         B. Certificate of Appealability

          A certificate of appealability may be issued “only if the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To obtain a certificate of appealability under § 2253(c)(2), a habeas petitioner must “sho[w] that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were ‘adequate to deserve encouragement to proceed further.'” Slack v. McDaniel, 529 US. 473, 483-84 (2000) (quoting Barefoot v. Estelle, 463 U.S. 880, 893 n.4 (1983)).

         II. DISCUSSION

         Petitioner's motion for reconsideration reargues the ineffective assistance of counsel claim he raised in his § 2255 petition. (Dkt. # 1-1, Pg. ID 17-20.) The court considered and addressed Petitioner's argument in its opinion and order denying relief. (Dkt. # 9, Pg. ID 84-85.) Petitioner does not present any new arguments, “but vehemently, disagree[s] with the ineffective assistance basis of this court's holding.” (Dkt. # 11, Pg. ID 89.) He asserts that his appellate counsel was ineffective for failing to argue for resentencing in light of Alleyne v. United States, 570 U.S. 99 (2013), in which the Supreme Court held that “[f]acts that increase the mandatory minimum sentence are therefore elements and must be submitted to the jury and found beyond a reasonable doubt.” Id. at 108. Specifically, Petitioner contends that his counsel was ineffective for failing to argue that his sentence was based on improper judicial fact-finding since he never admitted to brandishing a firearm.

         Petitioner was convicted for aiding and abetting an armed robbery during which a weapon was brandished. See 18 U.S.C. § 2(a) (“Whoever . . . aids, abets, counsels, commands, induces or procures” the commission of an offense against the United States “is punishable as a principal.”). The robbery statute at issue states,

(c)(1)(A) Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime-
(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

18 U.S.C. § 924(c)(1)(A). Importantly, Petitioner was charged under both 18 U.S.C. § 2 and 18 U.S.C. § ...


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