Jones v. Walton

Filing 12

OPINION AND ORDER denying 10 Motion to Amend/Correct; denying 11 Motion to Amend/Correct. Signed by District Judge Patrick J. Duggan. (MOre)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PHILLIP JONES,
Petitioner,
Case No. 11-10428
v.
Honorable Patrick J. Duggan
J. S. WALTON,
Respondent.
/
OPINION AND ORDER
At a session of said Court, held in the U.S.
District Courthouse, Eastern District
of Michigan, on_May 24, 2011.
PRESENT:

THE HONORABLE PATRICK J. DUGGAN
U.S. DISTRICT COURT JUDGE

On February 3, 2011, Phillip Jones (“Petitioner”), a federal prisoner confined at the
Federal Correctional Institution in Milan, Michigan, filed a pro se petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2241. Petitioner challenges his convictions for
conspiracy to possess with intent to distribute cocaine base, 21 U.S.C. §§ 841(a)(1) and
846; distribution of cocaine base, 21 U.S.C. § 841(a)(1); attempt to possess cocaine with
intent to distribute and aiding and abetting, 21 U.S.C. §§ 841(a)(1), 846, and 18 U.S.C. §
2; and use of a firearm during a drug trafficking crime and aiding and abetting, 18 U.S.C.
§§ 2 and 924(c).
Petitioner has previously filed a number of motions challenging his conviction, all of

which have been denied. Noting Petitioner’s history of filing non-meritorious pleadings
and motions, the Sixth Circuit Court of Appeals issued an order on October 22, 2002
prohibiting Petitioner from filing “ANY” document with the Sixth Circuit or the district
court challenging his conviction unless it establishes: (1) a claim that relies on a new rule
of constitutional law made retroactive by the Supreme Court on collateral review; or (2) a
factual predicate that could not have been previously discovered through due diligence
which would establish by clear and convincing evidence that no fact finder would have
found Petitioner guilty. In re Jones, No. 02-1462 (6th Cir. Oct. 22, 2002).
This Court summarily denied the petition in an Opinion and Order dated March 28,
2011. Petitioner has filed a motion to alter the judgment pursuant to Federal Rule of Civil
Procedure 59(e). Petitioner has also filed a motion to amend the petition to incorporate the
arguments developed in his motion to alter the judgment. The Court dispenses with oral
argument pursuant to Eastern District of Michigan Local Rule 7.1(f), and for the reasons
stated below, denies both motions.
I. Petitioner’s Motion to Alter Judgment
A motion to alter or amend judgment pursuant to Federal Rule of Civil Procedure
59(e) may be granted only if there is a clear error of law, newly discovered evidence, an
intervening change in controlling law, or to prevent manifest injustice. GenCorp., Inc. v.
Am. Int’l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999).
Petitioner argues that the district court improperly amended his indictment and that
his trial counsel was ineffective for failure to object to this amendment. Count Five of the
original indictment alleged that Petitioner had used two different firearms, one being a
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fully automatic machine gun. At trial, the judge submitted to the jury a revised indictment
dividing the allegation in Count Five. The allegation concerning the machine gun became
a separate Count Six. The judge instructed the jury on the definition of what constituted a
machine gun and instructed the jury to consider Count Six separately.
Petitioner asserts that this amendment violated his right to a grand jury indictment,
but the Sixth Circuit’s order bars this claim. Petitioner’s claim does not rely on a new rule
of constitutional law made retroactive by the Supreme Court. Nor does his claim establish
a fact that would preclude a finding of guilt. Even if Petitioner’s claim were not barred,
the Court concludes that it must be rejected for lack of merit. Although a defendant may
not be charged with an offense that was not presented to a grand jury, his indictment may
be amended without resubmission to the grand jury if the changes are matters of form.
Russell v. United States, 369 U.S. 749, 770, 82 S. Ct. 1038, 1050 (1962). The grand jury
returned an indictment charging Petitioner with the use and carrying of two different
firearms during and in relation to a drug trafficking crime. The amended indictment
charged Petitioner with the use and carrying of these same two firearms during and in
relation to a drug trafficking crime; it merely separated Count Five so that the jury could
return a distinct verdict with respect to each weapon. As the amendment concerned a
matter of form, it did not violate Petitioner’s right to a grand jury indictment. Petitioner
asserts that his counsel was ineffective for failure to object to the amendment, but the
Court cannot conclude that counsel was required to make a meritless objection.
Petitioner asserts that the machine gun referred to in his indictment was originally
manufactured as a semi-automatic weapon, and was later modified to allow operation as a
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fully automatic weapon. Petitioner argues that his conviction must be set aside because
the government was required to introduce evidence showing that he was aware of the
weapon’s fully automatic capability. See Staples v. United States, 511 U.S. 600, 619, 114
S. Ct. 1793, 1804 (1994). The Sixth Circuit’s order bars this claim. Petitioner’s argument
does not rely on a new rule of constitutional law made retroactive by the Supreme Court.
His claim does not establish facts that could not have been previously discovered through
due diligence. The Court concludes that Petitioner’s claim must be rejected because it is
improperly raised.
Petitioner’s next claim is that an intervening change in controlling law has rendered
him actually innocent of the use and carrying of firearms during and in relation to a drug
trafficking crime. Petitioner claims that in Watson v. United States, 552 U.S. 74, 128 S.
Ct. 579 (2007), the United States Supreme Court held that trading guns for drugs does not
constitute the “use” of a weapon under 18 U.S.C. § 924(c). Petitioner was charged with
trading guns for drugs, and argues that Watson establishes his innocence.
Watson does not apply to Petitioner’s conduct. In Watson, the Supreme Court held
that a person who receives a gun in exchange for drugs does not “use” the gun during and
in relation to a drug trafficking crime for purposes of § 924(c). 552 U.S. at 76, 128 S. Ct.
at 581. The Court noted that it had previously addressed the converse scenario, where a
defendant receives drugs in exchange for guns, in Smith v. United States, 508 U.S. 223,
113 S. Ct. 2050 (1993). Smith held that “a criminal who trades his firearm for drugs ‘uses’
it during and in relation to a drug trafficking offense within the meaning of § 924(c)(1).”
508 U.S. at 241, 113 S. Ct. at 2060. The Watson court did not disturb this holding, stating
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that “Smith must be respected.” Watson, 552 U.S. at 82, 128 S. Ct. at 585. Petitioner’s
trade of guns for drugs is therefore governed by Smith, which held that such a trade
violates § 924(c)(1). The Court concludes that Watson does not invalidate Petitioner’s
conviction. As Petitioner has failed to demonstrate either a clear error of law or an
intervening change in controlling law, his motion to alter judgment must be denied.
II. Petitioner’s Motion to Amend
Petitioner has moved to amend his petition to incorporate the arguments developed in
his motion to alter judgment. Pursuant to Federal Rule of Civil Procedure 15(a)(2), a party
may amend its pleading with the opposing party’s written consent or the court’s leave, and
“[t]he court should freely give leave when justice so requires.” Courts have discretion in
granting leave to amend. Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962).
Absent any apparent or declared reason, such as undue delay, bad faith, repeated failure to
cure deficiencies, undue prejudice to the opposing party, and futility of amendment, leave
to amend should be freely given. Id. The Court has carefully considered Petitioner’s
arguments, and has concluded that they lack merit or cannot be raised pursuant to the Sixth
Circuit’s order. As the proposed amendment would be futile, the Court denies Petitioner’s
motion to amend.
III. Conclusion
For the reasons stated above,
IT IS ORDERED that Petitioner’s Motion to Alter the Judgment is DENIED;
IT IS FURTHER ORDERED that Petitioner’s Motion to Amend the § 2241
Petition is DENIED.
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s/PATRICK J. DUGGAN
UNITED STATES DISTRICT JUDGE
Copies to:
Phillip Jones, #18419-039
FCI Milan
Federal Correctional Institution
P.O. Box 1000
Milan, MI 48160

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