Spells v. USA

Filing 5

MEMORANDUM AND ORDER re: 1 Motion to Vacate/Set Aside/Correct Sentence (2255), filed by Ronnie Spells: that the petition is DENIED. Petitioner has not made a substantial showing of the denial of a constitutional right and, accordingly, a c ertificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). This Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal from this order would not be taken in good faith and in forma pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962). (Signed by Judge P. Kevin Castel on 7/30/2014) (tn)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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RONNIE SPELLS,
Petitioner,

USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:-----~-•
DATE FILED: 7/3()//j
14-cv-3774 (PKC)
04-cr-13 04 (PKC)

-againstMEMORANDUM
AND ORDER
UNITED STATES OF AMERICA,
Respondent.

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CASTEL, U.S.D.J.
Petitioner Ronnie Spells has filed, pro se, a petition to vacate, set aside, or correct
his sentence pursuant to28 U.S.C. § 2255. Spells challenges the legality of his sentence entered
in United States v. Spells, No. 04-CR-1304 (GEL) (S.D.N.Y. May 23, 2008). Specifically,
Spells contends that his sentence was wrongfully enhanced as a result of this Court's erroneous
classification of him as a "career offender" based on crimes that he committed as a minor. For
the reasons set forth below, the petition is time-barred and therefore denied.
On October 4, 2006, Spells was convicted of one count of possession with intent
to distribute crack cocaine under 21 U.S.C. § 841(b)(l)(B); one count of possession with intent
to distribnte heroin under 21 U.S.C. § 841(b)(l)(C); one count of possession of a firearm in
furtherance of drug trafficking offenses under 18 U.S.C. § 924(c)(l)(A)(l); one count of felon in
possession ofa firearm under 18 U.S.C. § 922(g)(l)(A); and two counts of possession ofa
defaced firearm under 18 U.S.C. § 922(k). Spells was sentenced to a total term of232 months'
imprisonment. See United States v. Spells, No. 04-CR-1304 (GEL) (S.D.N.Y. Oct. 4, 2006).
Spells filed a direct appeal, and the Court of Appeals for the Second Circuit vacated his
conviction with respect to the two counts of possession of a defaced firearm. See United States

v. Spells, No. 06-4820-CR (2d Cir. Feb. 29, 2008). The Court of Appeals affirmed and
remanded Movant’s conviction with respect to the other four counts for reconsideration of
sentencing in light of two intervening Supreme Court decisions. Id. On remand, this Court
amended Spells’s judgment by reducing his total term of imprisonment to 186 months. See
United States v. Spells, No. 04-CR-1304-01 (GEL) (S.D.N.Y. May 23, 2008), appeal withdrawn
per stipulation, No. 08-2765-CR (2d Cir. Aug. 4, 2008).1
On May 6, 2014, Spells filed the instant section 2255 motion, alleging that his
sentence was enhanced as a result of this Court wrongfully classifying him as a “career offender”
based on convictions for crimes he committed as a minor. Movant seeks to have his present
sentence vacated and to be resentenced to the term he would have received if he was not
classified as a career offender. This Court issued an order directing Spells to submit an
affirmation showing cause why his petition should not be dismissed as time-barred under 28
U.S.C. § 2255(f). Spells submitted an affirmation, which was docketed on July 27, 2014. (Dkt.
No. 4)
A court may dismiss an action sua sponte if it lacks an arguable basis in law or
fact—i.e., if it is "based on an indisputably meritless legal theory" or presents "factual
contentions [that] are clearly baseless." Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989). 28
U.S.C. § 2255(f) creates a one-year statute of limitations for motions made under 28 U.S.C. §
2255. The limitation period begins to run on the latest of the following:
(1) the date on which the judgment of conviction became final; (2) the date on
which the impediment to making a motion created by governmental action in
violation of the Constitution or laws of the United States is removed, if the
movant was prevented from making a motion by such governmental action; (3)
1

This Court subsequently denied motions by Movant for credit for time served, see United States
v. Spells, No. 04-CR-1304 (PKC) (S.D.N.Y. Oct. 5, 2010), and for resentencing, see United
States v. Spells, No. 04-CR-1304 (PKC) (S.D.N.Y. June 15, 2011).
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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; or (4) the date on which the
facts supporting the claim or claims presented could have been discovered
through the exercise of due diligence.
28 U.S.C. § 2255(f). Spells concedes that his conviction became final on the date that his final
direct appeal was withdrawn by stipulation, on August 4, 2008, and does not argue that he has
been prevented from bringing this petition through governmental action.
In support of his petition, Spells raises four primary arguments. First, he contends
that Alleyne v. United States, 133 S.Ct. 2151 (2013) recognized a new right that is retroactively
applicable to cases on collateral review, and that the limitations period therefore began to run on
the date that case was decided pursuant to section 2255(f)(3). Second, he raises the same
argument based on Descamps v. United States, 133 S.Ct. 2276 (2013). Third, citing McQuiggin
v. Perkins, 133 S.Ct. 1924, 1928 (2013), he contends that he is “actually innocent” of being a
“career offender” under the United States Sentencing Guidelines, a circumstance that he argues
should equitably toll the statute of limitations. Fourth, he considers his development of new
legal arguments in collaboration with lawyers at the prison facility to constitute “the discovery of
new evidence” for purposes of section 2255(f)(4).
In Alleyne, the Supreme Court held that any fact that increases the applicable
mandatory minimum sentence must be found by a jury. 133 S.Ct. at 2155. Alleyne overruled
Harris v. United States, 536 U.S. 545 (2002), which had held that such facts could be judicially
determined. Spells argues that because Alleyne expressly overruled Harris, the rule announced
in Alleyne is “automatically retroactively available.” However, as the plain language of section
2255(f)(3) makes clear, a right newly recognized by the Supreme Court is not automatically
made retroactive. 28 U.S.C. § 2255(f)(3). By its express terms, section 2255(f)(3) only applies
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when the Supreme Court of the United States makes a newly recognized right retroactively
available to cases on collateral review. Id.; see also Tyler v. Cain, 533 U.S. 656, 663 (2001).
In United States v. Redd, the Second Circuit held that “Alleyne did not announce
a new rule of law made retroactive on collateral review.” 735 F.3d 88, 92 (2d Cir. 2013). The
court in Redd noted that “the Supreme Court announced the Alleyne rule without expressly
holding it to be retroactive to cases on collateral review.” 735 F.3d at 91. The court further
recognized that no subsequent Supreme Court decisions “necessarily dictate retroactivity of the
[Alleyne] rule,” id. (quoting Tyler v. Cain, 533 U.S. 656, 663 (2001)), and that the decision in
Alleyne does not fit into either of the two categories held to be automatically retroactive: Alleyne
was neither “a new substantive rule[] that place[s] ‘certain kinds of primary, private individual
conduct beyond the power of the criminal law-making authority to proscribe,’ ” nor a “ ‘new
procedural rule[] that “[is] implicit in the concept of ordered liberty.’ ” Id. (quoting Teague v.
Lane, 489 U.S. 288, 311 (1989)). Accordingly, the rule recognized in Alleyne does not qualify
for the limitations period commencement date under section 2255(f)(3).
The same is true for the rule in Descamps. In that case, the Supreme Court held
that “sentencing courts may not apply the modified categorical approach when the crime of
which the defendant was convicted has a single, indivisible set of elements.” 133 S.Ct. at 2282.
Spells argues that Descamps is implicated because in imposing his sentence, this court “failed to
utilize either the modified categorical approach and/or the modified categorical approach in
determining the propriety of using the State of New York youthful offender adjudications in
order to classify . . . [him] as a Career Offender . . . .” Spells Aff. at 3. This Court need not
determine whether Descamps is implicated by Spells’s sentencing, because that case has also not
been made retroactive by the Supreme Court. See Groves v. United States, No. 12-3253, 2014

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WL 2766171, at *4 (7th Cir. June 19, 2014) (“To date, the Supreme Court has not made
Descamps retroactive on collateral review.”); United States v. Chapman, __ F. Supp. 3d __, 2014
WL 1931814, at *4 (S.D. Tex. May 14, 2014) (collecting unpublished cases by federal district
Courts holding that Descamps does not apply retroactively to cases on collateral review). Thus,
Descamps also does not qualify Spells for the limitations period provided for under section
2255(f)(3).
Spells further argues that the “actual innocence” exception should toll the
limitations period under section 2255(f) pursuant to the Supreme Court’s decision in McQuiggin
v. Perkins, 133 S.Ct. 1924, 1928 (2013). Spells does not claim to be actually innocent of the
charges to which he pled guilty, but rather claims that he is innocent of being a career offender,
the Sentencing Guidelines factor that increased his sentence.
The Supreme Court has considered the “actual innocence” rule “in the course of
determining whether a habeas claim may be entertained despite the applicant's prior default and
his inability to make the cause-and-prejudice showing that would excuse the default . . . .”
Poindexter v. Nash, 333 F.3d 372, 380 (2d Cir. 2003). In Smith v. Murray, 477 U.S. 527, 537-38
(1986) the Supreme Court applied the “actual innocence” exception to consider an alleged error
at the sentencing phase of a capital trial. While these cases concerned “judge-made, prudential
barriers to habeas relief, or . . . channeling judges’ statutorily conferred discretion not to apply a
procedural bar,” 133 S.Ct. at 1937 (Scalia, J., dissenting), in McQuiggin the Supreme Court
applied the “actual innocence” doctrine in the context of a federal statute, holding that a proven
claim of actual innocence may overcome the one-year statute of limitations set forth in section
2255(f). Id. at 1928. Here, Spells argues that this Court should extend the actual innocence

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exception to the sentencing phase of a non-capital trial to excuse the untimeliness of his section
2255 petition.
The Second Circuit squarely confronted and rejected an argument nearly identical
to Spells’s in Poindexter v. Nash, 333 F.3d 372, 380-82 (2d Cir. 2003). There, the court rejected
the petitioner’s claim of actual innocence of being a career offender, noting that the petitioner’s
“argument is a technical one that neither asserts a claim of constitutional dimension nor
constitutes a claim of ‘actual innocence’ as that term is used either in those cases or in habeas
jurisprudence generally.” Id. at 380 (2d Cir. 2003). The court further explained that the concept
of actual innocence in the context of a noncapital case “means simply that the defendant did not
commit the crime.” Id. at 381 (citing Sawyer v. Whitley, 505 U.S. 333, 341 (1992)). Because
Spells does not argue that he is innocent of the crimes for which he was convicted, the actual
innocence exception is inapplicable to this petition.
Spells also argues that his development of the legal arguments raised in his
position constitutes the “discovery of new evidence.” He appears to argue that he could not have
discovered these arguments through the exercise of due diligence prior to his research for the
instant petition, such that the limitations period in section 2255(f)(4) should apply. This
argument is unavailing. Section 2255(f)(4) is predicated on the date that the “facts supporting
the claim” could have been discovered. 28 U.S.C. § 2255(f)(4) (emphasis added). Accordingly,
a petitioner’s “discovery” of a new legal opinion or legal argument cannot support the
application of the limitations period of 2255(f)(4).
The Court has considered the remainder of Spells’s arguments and has found
them to be without merit. Accordingly, the petition is DENIED.

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Petitioner has not made a substantial showing of the denial of a constitutional
right and, accordingly, a certificate of appealability will not issue. 28 U.S.C. § 2253; see Lozada
v. United States, 107 F.3d 1011, 1016-17 (2d Cir. 1997), abrogated on other grounds by United
States v. Perez, 129 F.3d 255, 259-60 (2d Cir. 1997). This Court certifies pursuant to 28 U.S.C.
§ 1915(a)(3) that any appeal from this order would not be taken in good faith and in fornia
pauperis status is denied. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).

~/./fro/

SO ORDERED.

evin Castel
United States District Judge
Dated: New York, New York
July 30, 2014

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