United States District Court, W.D. Tennessee, Eastern Division
ORDER DENYING § 2255 PETITION, DENYING
CERTIFICATE OF APPEALABILITY, AND DENYING LEAVE TO APPEAL IN
DANIEL BREEN UNITED STATES DISTRICT JUDGE.
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.
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.
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.)
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.
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).
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).
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
(i) be sentenced to a term of imprisonment of not less than 5
(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 ...