Thelmon Stuckey, III v. USA

Filing

OPINION filed : We AFFIRM. Decision not for publication. Eugene E. Siler , Jr., John M. Rogers, and Deborah L. Cook (AUTHORING), Circuit Judges.

Case: 13-2685

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 15a0163n.06

FILED

Case No. 13-2685
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

THELMON F. STUCKEY, III,
Petitioner-Appellant,
v.
UNITED STATES OF AMERICA,
Respondent-Appellee.

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Mar 02, 2015
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE UNITED
STATES DISTRICT COURT FOR
THE EASTERN DISTRICT OF
MICHIGAN

BEFORE: SILER, ROGERS, and COOK, Circuit Judges.
COOK, Circuit Judge. Thelmon Stuckey appeals the district court’s denial of his motion
to amend his federal habeas petition. Finding no error, we AFFIRM.
A jury convicted Stuckey, a leader and “enforcer” of a violent drug gang, of murder to
prevent a person from providing information concerning a federal crime to federal authorities
under the federal witness-tampering statute, 18 U.S.C. § 1512. An eyewitness to the murder
testified at trial that Stuckey shot Darbins, a member of Stuckey’s drug organization, eleven
times before bending over his body, kissing him, and saying “that he loved him . . . but he talked
too much.” United States v. Stuckey, 253 F. App’x 468, 474–75 (6th Cir. 2007). We affirmed
Stuckey’s murder conviction. See id. at 492.

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Case No. 13-2685
Stuckey v. United States

Years later, Stuckey moved to vacate his sentence under 28 U.S.C. § 2255, relying in his
proposed amended petition on the Supreme Court’s decision in Fowler v. United States, 131 S.
Ct. 2045 (2011).

Fowler, he argued, rendered his murder conviction invalid “because the

government was required to prove more than just a possibility that Darbins would have
cooperated with federal authorities.” The district court rejected Stuckey’s proposed amendment
as futile because Fowler, as the court understood it, would not support Stuckey’s claim. This
court granted Stuckey a certificate of appealability to determine whether the district court
properly denied his motion to amend.
Though we ordinarily review a district court’s denial of a motion to amend for abuse of
discretion, we review de novo when, as here, the court denies the motion because amendment
would be futile. Bennett v. MIS Corp., 607 F.3d 1076, 1100 (6th Cir. 2010) (citing Parry v.
Mohawk Motors of Mich., Inc., 236 F.3d 299, 306 (6th Cir. 2000)).
Stuckey’s argument stems from a misreading of Fowler. Fowler concerned the federal
nexus requirement for convictions under the witness-tampering statute when the defendant acts
with an intent to prevent communication to law enforcement officers in general. To establish
such a nexus, Fowler requires proof of a “reasonable likelihood” that at least one hypothetical
communication (by Darbins) would have been made to a federal (as opposed to state) law
enforcement officer. 131 S. Ct. at 2052. Here, the federal investigation into Stuckey’s drug
organization led to Darbins’s federal indictment, and interest in getting Darbins to cooperate
prompted the FBI’s search for him that uncovered his murder. Had Darbins communicated with
law enforcement, “it is reasonably likely . . . that a federal law enforcement officer would have
been on the receiving end of this communication.” (R. 336, Op. & Order at 20.)
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Case No. 13-2685
Stuckey v. United States
As the government notes, Stuckey tries to import the “reasonable likelihood standard[]
from its proper place in proving a federal nexus where that is unclear, to a requirement to prove
the victim’s intent.” That is, Stuckey reads Fowler as requiring the government to show a
reasonable likelihood that Darbins would have, in fact, communicated with a federal officer had
he survived. But Fowler requires no such showing. The district court thus properly concluded
that amendment would be futile. We AFFIRM.

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