United States District Court, E.D. Tennessee
A. VARLAN, UNITED STATES DISTRICT JUDGE
Linnell Richmond, Jr. has filed a motion to vacate, set
aside, or correct his sentence under to 28 U.S.C. § 2255
[Doc. 1], and three motions to supplement it, each with an
attached memorandum [Docs. 6, 7, 9, 10, 17, 18]. Respondent
has filed two responses in opposition [Doc. 4, 12]. Having
considered the pleadings and the record, along with the
relevant law, the Court finds that it is unnecessary to hold
an evidentiary hearing,  and Richmond's § 2255 motion
will be denied.
1995, a jury convicted Richmond of conspiring to interfere
with commerce by violence, in violation of 18 U.S.C. §
371; aiding and abetting a Hobbs Act robbery, in violation of
18 U.S.C. §§ 1951 and 2; two counts of aiding and
abetting the use of a firearm during and in relation to a
crime of violence, in violation of 18 U.S.C. § 924(c);
and aiding and abetting the possession of a machine gun, in
violation of 18 U.S.C. § 922(o). United States v.
Richmond, Nos. 96-5879, 96-5880, 96-5886, 1997 WL
720469, at *1 (6th Cir. Nov. 12, 1997) (per curiam). Richmond
was sentenced to an aggregate term of 441 months'
imprisonment. The Sixth Circuit affirmed his convictions and
sentence, and the Supreme Court denied certiorari. See
id.; Richmond v. United States, 523 U.S. 1032
of 2016, Richmond filed the instant § 2255 motion for a
lesser sentence in light of the holding of Johnson v.
United States, which invalidated the residual clause of
the Armed Career Criminal Act (“ACCA”).
Johnson v. United States, 135 S.Ct. 2551, 2563
(2015) [Doc. 1].
main argument is that Johnson also invalidates the
residual clause of 18 U.S.C. § 924(c). But regardless of
the constitutionality of § 924(c)'s residual clause-
a matter currently before the Supreme Court, see United
States v. Davis, 139 S.Ct. 782, (2019)-the challenged
convictions must stand because Hobbs Act Robbery also
qualifies as a crime of violence under § 924(c)'s
force clause. The Sixth Circuit has explicitly held exactly
A conviction under § 1951(b)(1) requires a finding of
“actual or threatened force, or violence, or fear of
injury, immediate or future.” Section 1951(b)(1)
clearly “has as an element the use, attempted use, or
threatened use of physical force against the person or
property of another” as necessary to constitute a crime
of violence under § 924(c)(3)(A), ” under the
so-called force clause of that statute.
United States v. Gooch, 850 F.3d 285, 291-92 (6th
Cir. 2017). Relief on this basis is therefore unwarranted.
also seeks to challenge the amount of jail credit he received
for time spent in state custody. Even if this claim were
cognizable on a § 2255 motion, which encompass only
errors of constitutional or jurisdictional magnitude, or
those containing factual or legal errors “so
fundamental as to render the entire proceeding invalid,
” Short v. United States, 471 F.3d 686, 691
(6th Cir. 2006), the request cannot be granted. “This Court
cannot grant or compute sentence credits under 18 U.S.C.
§ 3585(b), ” United States v. Williams,
2008 WL 3850212, at *1 (W.D. Tenn. Aug. 18, 2008), because
“the power to grant credit for time served lies solely
with the Attorney General and the Bureau of Prisons.”
United States v. Crozier, 259 F.3d 503, 520 (6th
Cir. 2001) (citing 18 U.S.C. § 3535(b); United
States v. Wilson, 503 U.S. 329, 333 (1992)); see
also United States v. Brown, 417 Fed.Appx. 488, 493 (6th
Cir. 2011) (“[A]warding credit for time served is the
exclusive responsibility of the Bureau of Prisons.”).
If the Bureau of Prisons declines to credit the
defendant's time served, he may then raise his claims
through its Administrative Remedy Program. Setser v.
United States, 566 U.S. 231, 244 (2012) (citing 28
C.F.R. § 542.10, et seq.). After exhausting his
administrative remedies, the defendant may then petition for
a writ of habeas corpus under 28 U.S.C. § 2241, a
petition that must be filed in defendant's district of
confinement, rather than here, in the sentencing court.
has also filed three motions to amend or revise his §
2255 motion. It is well-settled that a motion to amend or
supplement a § 2255 motion “will be denied where
it is filed after [the limitation] period expires unless the
proposed amendment relates back to the date of the original
pleading within the meaning of [Federal] Rule [of Civil
Procedure] 15(c)(2).” Howard v. United States,
533 F.3d 472, 475-76 (6th Cir. 2008). The new claims must be
based on the “same core facts” in a timely-filed
petition; a late-filed claim is unreviewable if it turns upon
“events separate in ‘both time and type' from
the originally raised episodes.” Mayle v.
Felix, 545 U.S. 644, 657 (2004).
the first and third supplements pertain to Richmond's
argument under Johnson and therefore relate back to
the original motion, leave to file them will be granted, and
the arguments made in them have been considered in the above
analysis [Docs. 6, 7, 14, 15].
second supplement, however, appears to assert a claim under
Alleyne v. United States, 133 S.Ct. 2151 (2013), and
a claim of ineffective assistance of counsel, both of which
are untimely [Doc. 9]. Under § 2255(f), a motion is timely
if filed within one year of, as relevant here, “the
date on which the judgment of conviction becomes final,
” or “the date on which the right asserted was
initially recognized by the Supreme Court, if that right has
been newly recognized by the Supreme Court and made
retroactively applicable to cases on collateral
review.” Neither criterium is satisfied: this
supplement was filed in 2018, but the judgment against
Richmond became final in 1998, and Alleyne was
decided in 2013. And these claims, which arise under the
Sixth Amendment, do not relate back to those asserted in
Richmond's original motion, which arise under the Fifth
Amendment. Leave to file this supplement will therefore be
denied because the asserted claims would be untimely.
has also filed a motion to lift a purported stay of his case
[Doc. 14]. However, it does not appear from the docket that
his case was ever stayed, and in any event, the accompanying
order will terminate this case. This motion will therefore be
denied as moot.
when considering a § 2255 motion, this Court must
“issue or deny a certificate of appealability when it
enters a final order adverse to the applicant.” Rule 11
of the Rules Governing Section 2255 Proceedings for the
United States District Courts. Richmond must obtain a
certificate of appealability (“COA”) before he
may appeal the denial of his § 2255 motion. 28 U.S.C.
§ 2253(c)(1)(B). A COA will issue “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). For
cases rejected on their merits, a movant “must
demonstrate that reasonable jurists would find the district
court's assessment of the constitutional claims debatable
or wrong” to warrant a COA. Slack v. McDaniel,
529 U.S. 473, 484 (2000). To obtain a COA on a claim that has
been rejected on procedural grounds, a movant must
demonstrate “that jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right and that jurists of reason
would find it debatable whether the district court was
correct in its procedural ruling.” Id. Based
on the Slack criteria, the Court finds that a COA
should not issue in this cause.
reasons stated above, Richmond has failed to establish any
basis upon which § 2255 relief could be granted, and his
motion will therefore be DENIED [Doc. 1]. A