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Steward v. United States

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

June 20, 2019

CHERYL FREEMAN STEWARD, Petitioner,
v.
UNITED STATES OF AMERICA, Respondent.

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

          J. DANIEL BREEN UNITED STATES DISTRICT JUDGE.

         Before the Court is the May 9, 2016, pro se motion of Petitioner, Cheryl Freeman Steward, to vacate, set aside, or correct her sentence (the “Petition”), pursuant to 28 U.S.C. § 2255. (Docket Entry (“D.E.”) 5.) For the following reasons, the Petition is DENIED.

         BACKGROUND

         In 2010, Steward was charged in a superseding indictment with offenses arising out of the attempted robbery of a convenience store and the murder, by her husband, of one of the police officers who responded to the 911 call. Steward v. United States, No. 13-1325, 2016 WL 3676818, at *1 (W.D. Tenn. July 6, 2016). In September 2012, she pleaded guilty, pursuant to an agreement with the United States, to attempted robbery in violation of 18 U.S.C. § 1951 (“Hobbs Act robbery”); the use, carrying, brandishing, and discharging of a firearm in connection with the attempted robbery in violation of 18 U.S.C. § 924(c)(1); and “falsely representing to the weapons dealer from which she purchased the firearm that it was for herself rather than a convicted felon, in violation of 18 U.S.C. §§ 922(a)(6) and 924(a)(2).” Id. She also waived her right to collaterally attack her sentence under some circumstances. Id. at *2. In exchange for her plea, the Government dismissed Counts 3 and 4 of the superseding indictment, and agreed to a 240-month sentence of incarceration. Id. at *1. Petitioner was sentenced on November 30, 2012, to a total of 240 months' incarceration, and judgment was entered on December 3, 2012. Id. She did not appeal. Id.

         In 2013, the inmate filed her first § 2255 motion, in which she challenged her attorney's effectiveness and the manner in which her sentence was determined. Id. at *1-2; see also Steward v. United States, No. 1:13-cv-01325-JDB-egb (No. 1:13-cv-01325-JDB-egb, D.E. 1.) In July 2016, this Court held that “Steward's § 2255 motion was timely[, ] . . . that the collateral-challenge waiver [contained in her plea agreement] barred any claims challenging her conviction and sentence or the manner in which the sentence was determined, ” and that the ineffective-assistance-of-counsel “claims lacked merit.” (No. 1:13-cv-01325-JDB-egb, D.E. 21 at PageID 91.) In March 2017, the Sixth Circuit denied a certificate of appealability (“COA”). (Id., D.E. 21 at PageID 93.)

         While her § 2255 motion was pending before this Court in No. 1:13-cv-01325-JDB-egb, the movant filed the instant Petition, entitled “Seeking a Sentence Reduction Based on Johnson v. United States and Pursuant to 28 U.S.C. § 2255.” (D.E. 5.) She asserted a sole claim that Johnson v. United States, 135 S.Ct. 2551 (2015), rendered her § 924(c) conviction unconstitutional. Although through no fault of her own the Petition was docketed as the case-initiating pleading in the present case, it should have been docketed as a supplement or amendment to, or motion to amend, the then-pending § 2255 motion in No. 1:13-cv-01325-JDB-egb. Because the Petition was filed prior to this Court's disposition of the first § 2255 motion, it is not a second or successive petition under 28 U.S.C. § 2244(b). See Clark v. United States, 764 F.3d 653, 658 (6th Cir. 2014) (“A motion to amend is not a second or successive § 2255 motion when it is filed before the adjudication of the initial § 2255 motion is complete-i.e., before the petitioner has lost on the merits and exhausted her appellate remedies, ” citing Ching v. United States, 298 F.3d 174, 177-78 (2d Cir. 2002) and Johnson v United States, 196 F.3d 802, 805 (7th Cir. 1999)).

         DISCUSSION

         A prisoner seeking to vacate her 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). A petitioner has the burden of proving by a preponderance of the evidence that she is entitled to relief. Pough v. United States, 442 F.3d 959, 964 (6th Cir. 2006).

         Petitioner argues that her conviction under § 924(c) should be set aside based on the ruling in Johnson that the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), was unconstitutionally void for vagueness. See Johnson, 135 S.Ct. at 2557. The claim must be denied for two reasons. First, as the Court found in No. 1:13-cv-01325-JDB-egb, Steward waived her right to collaterally object to her convictions and sentences and the manner in which the sentences were determined. See Steward, 2016 WL 3676818, at *2. Accordingly, the Johnson claim, which challenges the § 924(c) conviction, has been waived. See Cox v. United States, 695 Fed.Appx. 851, 853 (6th Cir. 2017) (“[T]his Court has consistently held § 2255 . . . waivers with plain language that precludes Johnson-[]based claims are enforceable even if those waivers were entered into years before Johnson . . . [was] decided, ” citing United States v. Morrison, 852 F.3d 488 (6th Cir. 2017) and In re Garner, 664 Fed.Appx. 441, 443-44 (6th Cir. 2016)), cert. denied, 138 S.Ct. 1282 (2018).

         Second, even if not waived, the claim fails on the merits. The firearm statute provides in pertinent part that,

[e]xcept 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
(iii) if the firearm is discharged, be sentenced to a term of imprisonment of not ...

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