Fletcher v. United States of America

Filing 52

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Aleta A. Trauger on 5/23/14. (xc:Pro se party by regular and certified mail.)(DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(afs)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
LAMARR FLETCHER,
Movant,
v.
UNITED STATES OF AMERICA,
Respondent.

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No. 3:12-cv-00830
Judge Trauger

MEMORANDUM
On August 13, 2012, the movant, Lamarr Fletcher, proceeding pro se, filed a motion under
28 U.S.C. § 2255 to vacate, set aside, or correct his sentence on three grounds: the district court
judge was biased and prejudiced against the defendant; the prosecutor improperly vouched for drug
quantity in closing arguments; and the movant received ineffective assistance of counsel at trial.
(Docket No. 1).
By order and accompanying memorandum entered on May 21, 2013, the court denied
Fletcher’s § 2255 motion on all grounds and dismissed this action with prejudice. (Docket Nos. 25
and 26). On May 22, 2013, Fletcher signed and dated a “Motion for Leave of Court to File
Supplemental Pleadings to His § 2255 Motion.” (Docket No. 29 at p. 7). By order entered on June
7, 2013, the court determined that it would entertain Fletcher's motion, which the court construed
as a motion to amend his original § 2255 motion to add a new ground for relief pursuant to the May
17, 2013, Sixth Circuit panel decision in Blewett.1 (Docket No. 33). The court ordered the United

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On May 17, 2013, a panel of the Sixth Circuit Court of Appeals entered a decision in United States v. Blewett,
719 F.3d 482, (6th Cir. 2013), finding that the application of racially discriminatory mandatory minimum crack sentences
for those defendants sentenced prior to enactment of the Fair Sentencing Act would violate equal protection.

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States Attorney to respond to Fletcher’s motion, and the government subsequently filed a motion
asking the court to hold Fletcher’s motion to amend in abeyance pending the Sixth Circuit’s en banc
ruling in Blewett. (Docket No. 34).
The court granted the government’s motion and, on December 3, 2013, the Sixth Circuit
issued an en banc opinion rejecting the prior panel opinion in Blewett and holding that the Fair
Sentencing Act (FSA) did not retroactively undo final sentences. United States v. Blewett, -- F.3d
--, 2013 WL 6231727 (6th Cir. Dec. 3, 2013). In short order, the government filed its response to
Fletcher’s pending motion, asserting that Fletcher’s proposed amended claim should be rejected
based on the December 3, 2013, ruling. (Docket No. 48).
On February 2, 2014, Fletcher filed a “Motion to Amend § 2255 Motion.” (Docket No. 50).
In this newest motion, Fletcher claims a violation of his due process rights and asks the court to
amend his judgment and commitment to reflect credit for time served. (Id.)
The court must now determine whether, in light of the Sixth Circuit’s en banc decision in
Blewett and other considerations, Fletcher should be permitted to amend his original § 2255 petition
to add two additional claims. Pursuant to 28 U.S.C. § 2242, a federal habeas petition may be
amended according to the requirements set forth in Federal Rule of Civil Procedure 15. See
Anderson v. United States, No. 01-2476, 2002 WL 857742 at *3 (6th Cir. May 3, 2002); Oleson v.
United States, No. 00-1938, 2001 WL 1631828 (6th Cir. Dec. 14, 2001)(stating that the mandate of
Fed. R. Civ. P. 15(a), that a court freely grant leave to amend when justice so requires, has been
interpreted to allow supplementation and clarification of claims initially raised in a timely § 2255
motion). In considering whether to grant motions to amend under Rule 15, a court should consider
whether the amendment would be futile, i.e., if it could withstand a motion to dismiss under Federal

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Rule of Civil Procedure 12(b)(6). Hoover v. Langston Equip. Assocs., 958 F.2d 742, 745 (6th
Cir.1992). Likewise, a motion to amend may be denied if it is brought after undue delay or with
dilatory motive. Foman v. Davis, 371 U.S. 178, 83 S. Ct. 227, 9 L.Ed.2d 222 (1962); Prather v.
Dayton Power & Light Co., 918 F.2d 1255, 1259 (6th Cir.1990).
Here, Fletcher’s first motion to amend (Docket No. 29) was timely filed and was not brought
with dilatory motive. (See Docket No. 33). However, the court finds that granting Fletcher's motion
to amend his petition to add his proposed fourth claim pursuant to the Blewett panel decision would
be futile. Given that the Sixth Circuit now has held that the FSA–which applies to mandatory
minimum sentences involving crack cocaine-- did not retroactively undo final sentences, the panel
decision on which Fletcher relied in support of his motion to amend is no longer the governing law
of this Circuit.
Moreover, as the government noted in its earlier motion, the overturned Blewett panel
decision did not help Fletcher’s argument to amend anyway. Fletcher was sentenced under the
previous sentencing scheme that the FSA amended, for possessing not less than fifty (50) grams of
crack cocaine. This sentence carried a ten (10) year mandatory minimum, but the court sentenced
Fletcher to one hundred sixty-eight (168) months. Case No. 3:03-cr-00190 (Docket No. 620, p. 1).
Fletcher also was convicted of possessing not less than five (5) kilograms of powder cocaine, a
conviction also carrying a ten year mandatory minimum, and the court sentenced Fletcher to one
hundred sixty-eight (168) months on this count as well. (Id.) Because the two sentences were
ordered to be served concurrently, (id. at p. 2), even if the decision of the Blewett panel had been
affirmed, Fletcher’s ultimate term of imprisonment likely would not have been affected due to his
168-month sentence for powder cocaine. See United States. v. Robertson, 2006 WL 984730 (W.D.

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Tenn. Apr. 13, 2006) (denying motion to amend or supplement habeas petition brought under 28
U.S.C. § 2255 with Blakely and Booker claims because amending would be futile since Blakely and
Booker do not apply retroactively to cases on collateral review).
For those reasons, Fletcher's motion to amend his original § 2255 motion to add a new
ground for relief pursuant to the May 17, 2013, Sixth Circuit panel decision in Blewett (Docket No.
29), will be DENIED as futile.
On February 20, 2014, Fletcher filed another motion to amend his original § 2255 motion,
in which he seeks to add a fifth claim. (Docket No. 50). Notably, the court did not grant Fletcher
permission to seek the amendment of his original § 2255 motion for any reason other than pursuing
a fourth claim under the now-overturned Blewett panel decision. (See Docket No. 33, Order, “Under
the circumstances described, the court finds that it is appropriate to entertain Fletcher’s motion for
leave of court to file supplemental pleadings, which the court construes as a motion to amend his
original § 2255 motion to add a new ground for relief pursuant to the May 17, 2013, Sixth Circuit
panel decision in Blewett.”(emphasis added)).
Setting that aside for the moment, Fletcher’s proposed due process claim challenges the
decision of the Bureau of Prison (BOP) not to credit all of Fletcher’s time served to his federal
sentence. (Docket No. 50 at pp. 1-2). However, a motion pursuant to § 2255 is not the appropriate
method for challenging the execution of a federal sentence. Accordingly, Fletcher’s motion to
amend (Docket No. 50), which challenges the execution of his federal sentence despite Fletcher’s
assertion to the contrary (id. at p. 2), will be DENIED.
Title 28 U.S.C. § 2241 generally is used to challenge the execution of a sentence, or the
manner in which a sentence is being served. Muhammad Ali v. Tennessee Board of Pardon and

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Paroles, 431 F.3d 896, 896 (6th Cir. 2006). Relief under § 2241 is available where a petitioner has
been denied his rights under the Constitution and/or laws of the United States. 28 U.S.C. §
2241(c)(3). Claims cognizable under § 2241 generally pertain to claims such as the computation
of parole or sentencing credits. Cohen v. United States, 593 F.2d 766, 770-771 (6th Cir. 1979).
The court could sua sponte convert Fletcher’s instant motion (Docket No. 50) to a § 2241
motion. However, whereas there is no filing fee for a motion brought pursuant to § 2255, there is
a fee for filing a motion brought pursuant to § 2241. Should Fletcher wish to pursue a challenge to
the execution of his sentence pursuant to § 2241, he would need to submit the required five dollar
($5.00) filing fee or an application to proceed in forma pauperis in lieu thereof.
An appropriate order will be entered.

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Aleta A. Trauger
United States District Judge

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